Kisanlal Bairudas Jain v. Union of India and Ors.

1. Heard learned counsel for the parties.

2. We issue Rule in each of these petitions. The Rule is made returnable forthwith, with the consent of the learned counsel for the parties.

3. Yesterday, we made it clear that these matters would be taken up for final disposal today because there was never any dispute that the law laid down by the Hon'ble Supreme Court in the case of Union of India vs Tarsem Singh and Ors.[1] was applicable in these matters, entitling all the Petitioners to the statutory benefits of interest and solatium on par with the provisions of the Right To Fair Compensation And Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

4. Mr. Sambhaji Kharatmol, the learned counsel appearing on behalf of the National Highway Authority of India in some of these matters, has tendered an affidavit-in-reply. He has contended that these Petitions should not be entertained because all the Petitioners have an alternate remedy under Section 37 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”). Further, the affidavit states that if the Petitioners are affected by nonpayment of solatium and interest in terms of the decision of the Hon'ble Supreme Court in the case of Tarsem Singh (Supra), 'petitioner should promptly file claims with the Competent Authority, including all necessary documentation and prove that, he is entitled for solatium and interest, but the Petitioner without availing the remedy directly approached this Hon'ble Court by way of writ petition, which is against the settled position of law, hence, the Writ Petition filed by the Petitioner deserves to be dismissed holding that the same is not maintainable.’

5. In all these matters, the Petitioners were aggrieved with the compensation amount determined and, therefore, applied for the matter to be resolved through Arbitration as provided under Section 3G(5) of the National Highways Act, 1956. The Arbitrator so appointed made an award, enhancing the compensation. However, the benefit of the decision of the Hon'ble Supreme Court in Tarsem Singh (supra) was not granted.

6. Therefore, the Petitioners preferred petitions under Section 34 of the Arbitration Act. A common judgment and order dated 4 May 2023 disposed of these. In this judgment and order, the Principal District Judge, Nashik, [PDJ], in fact agreed with the Petitioner's contention that they were entitled to solatium and interest in terms of the decision of the Hon'ble Supreme Court in Tarsem Singh (supra). This judgment and order records that even the National Highway Authority expressed willingness to pay the solatium component from the decision date in Tarsem Singh (supra). However, the PDJ, being bound by the decision of the Coordinate Bench of this Court in the case of Rishabhkumar Vs Secretary to Government of India[2], felt disabled to modify the Arbitrator's award and grant the Petitioners relief in terms of the decision of the Hon'ble Supreme court in the case of Tarsem Singh (supra).

7. The above is evident from paragraphs 25 to 26 of the PDJ’s order disposing of the Petitioner's Petitions under Section 34 of the Arbitration Act. Paragraphs 25 and 26 are transcribed below for the convenience of reference: - “25. I do agree with the submissions made by learned Advocate Mr. S.N.Baste appearing for the applicants that applicants are entitled for solatium and interest on solatium. So also National Highways Authority expressed willingness to pay the solatium components from the date of decision of Hon'ble Apex Court passed in case of Tarsem Singh.

26. However, in the light of legal principle laid down by the Hon'ble Bombay High Court in Rishabhkumar s/o. Babulal Jejani (Supra), grant of statutory amount and components are not permissible in exercise of jurisdiction under Section 34 of the Arbitration and Conciliation Act.”

8. Incidentally, Rishabhkumar (supra) takes the view that whatever the Principal District Judge in a Petition under Section 34 of the Arbitration Act could not have done, the same cannot be done by the Appeal court under Section 37 of the Arbitration Act. In such circumstances, we cannot appreciate the NHAI's stance of raising the plea that these petitions should not be entertained because the Petitioners have an alternate remedy under Section 37 of the Arbitration Act.

9. It is well settled that the rule of exhaustion of alternate remedies is a self-imposed restriction on exercising extraordinary jurisdiction under Article 226 of the Constitution of India. Before applying this Rule, the court must see whether the alternate remedy is indeed efficacious. There is no point in relegating the Petitioners to the remedy under Section 37 of the Arbitration Act, when the relief they claim cannot be granted under such proceedings.

10. If we were to relegate the Petitioners to the remedy of Section 37, the Appeal Court, being bound by the decision in Rishabhkumar (supra), would have no option but to dismiss such appeals by declining to modify the arbitral award. This would be futile. Such a remedy can hardly be called an efficacious one. Accordingly, we reject the unfortunate contention that these Petitions should not be entertained because the Petitioners have an alternative remedy under Section 37 of the said Act.

11. In the case of M/s Godrej Sara Lee Ltd Vs The Excise and Taxation officer-cum-Assessing Authority and Ors.3,Civil Appeal no.5393 of 2010 decided on 1 February 2023, the Hon'ble Supreme Court interfered with the dismissal of the writ petition by the High Court because the petitioner had not availed the alternate remedy. The Hon'ble Supreme Court noted that such dismissal was improper because the High Court failed to examine whether an exceptional case has been made out. The Hon'ble Supreme Court also noted that mere availability of an alternative remedy of appeal or revision would not oust the jurisdiction of the High Court and render a writ petition 'not maintainable'. Where the controversy is purely legal one and it does not involve 2023 (384) ELT 8 (SC) disputed questions of fact but only involves questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available.

12. There is no serious dispute regarding the facts or applicable law in these matters. The PDJ has held that the Petitioners are entitled to the benefits in terms of Tarsem Singh (Supra). The NHAI offered such benefits from the date of the judgment. The socalled alternative remedy is ineffective. There is no benefit in relegating the Petitioners to avail themselves of such an alternative remedy, thus depriving them of the benefits to which they are entitled.

13. In all these matters, as noted earlier, there is no dispute about the Petitioners being entitled to the benefits of the solatium and interest under the decision of the Hon'ble Supreme Court in Tarsem Singh (Supra). Even the counsel for NHAI who appeared before the Principal District Judge, fairly submitted that the NHAI was willing to pay solatium component, though, from the date of the decision in the case of Tarsem Singh (Supra). After all this, to raise the objection based on alternate remedy in this Court, appears to be extremely unfortunate and unfair on the part of the NHAI. The NHAI cannot take diversion stances. Ultimately, these are statutory benefits. The entitlement is never seriously disputed. Even the Principal District Judge, in terms held that the Petitioners were entitled to such benefits given the decision in Tarsem Singh (Supra).

14. These are not adversarial proceedings, and we are happy to note that NHAI did not treat them as adversarial proceedings at least before the District Court. Even in this Court, Mr. Singh, who appeared for NHAI in some of the matters, did not raise an objection based on an alternate remedy. The objection was only raised by Mr. Sambhaji Kharatmol, no doubt, on the instructions of his senior, who had appeared yesterday and raised the same objection.